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Exhibit 99.(e)(12)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made this April 28, 1998, by and between
SUNRISE MEDICAL, INC., a Delaware corporation (the "Company"), and (NAME)
("Indemnitee").
WHEREAS, the Company desires to attract and retain the services of
Indemnitee and to provide Indemnitee with adequate liability indemnification;
and
WHEREAS, the Company has been advised that it may provide such
indemnification under and in accordance with Delaware law by entering into an
agreement providing for broad indemnification of Indemnitee by the Company; and
WHEREAS, the stockholders of the Company have approved an agreement
providing for the indemnification of officers and directors of the Company and
its subsidiaries to the maximum extent authorized by Delaware law in accordance
with Section 145(f) of the Delaware General Corporation Law; and
WHEREAS, the Company desires to enter in to this Agreement with Indemnitee
to provide Indemnitee with indemnification in lieu of such insurance;
NOW, THEREFORE, the Company hereby agrees as follows:
1. INDEMNIFICATION
1.1 Subject to Section 1.3 hereof, the Company hereby agrees to hold
harmless and indemnify Indemnitee of and from all claims and all
threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative, involving
Indemnitee by reason of the fact that he is or was a director,
officer, employee or agent of the Company (or by reason of the fact
that he is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) including all
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, to the broadest and maximum extent permitted by
Delaware law.
1.2 Without limiting the generality of Section 1.1 hereof, the
indemnification provided for by Section 1.1. shall:
(i) extend to and fully cover any Loss (as hereinafter defined)
arising from any Claim (as hereinafter defined), whether such
Claim is made against Indemnitee, individually or jointly with
others, by reason of any Wrongful Act (as hereinafter defined)
made in Indemnitee's capacity as a director, officer, employee
and/or agent,
(ii) include all rights of indemnification provided to Indemnitee
under the existing provisions of the Bylaws of the Company,
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(iii) include all such additional rights of indemnification as might
possibly be provided to Indemnitee under the indemnification
provisions of Section 3.14 of the Bylaws of the Company or
Section 145 of the Delaware General Corporation Law and which
shall not be violative of Section 145 of the Delaware General
Corporation Law or contrary to the public policy of the State
of Delaware.
1.3 Nothing in this Section 1 shall be deemed to provide any indemnity
by the Company to Indemnitee on account of any matter:
(i) in respect to remuneration paid to Indemnitee if it shall be
determined by a final judgment or other final adjudication
that such remuneration was in violation of law, or
(ii) for an accounting of profits made from the purchase or sale by
Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state
or local statutory law, or
(iii) brought about or contributed to by the dishonesty of
Indemnitee if a final judgment or other final adjudication
adverse to Indemnitee establishes that acts of active and
deliberate dishonesty were committed or attempted by
Indemnitee with actual dishonest purpose and intent and were
material to the adjudications, or
(iv) which is based on or attributable to Indemnitee having gained
any personal profit or advantage to which he was not entitled,
in the event that a final judgment or other final adjudication
adverse to Indemnitee establishes that Indemnitee in fact
gained such personal profit or other advantage to which he was
not entitled, or
(v) in respect of which any final decision by a court having
jurisdiction of the matter shall determine that
indemnification is not lawful.
1.4 If Indemnitee is an officer or director of the Company, the Company
shall pay the expenses incurred by Indemnitee in defending any
civil, criminal, administrative or investigative action, suit or
proceeding in advance of the final disposition of such action, suit
or proceeding, provided that the Company receives an undertaking by
or on behalf of Indemnitee to repay such amounts advanced if it is
ultimately determined that he is not entitled to be indemnified by
the Company as authorized under this Agreement. The Company shall
perform its obligation under this Section 1.4 until such time as it
may determine that Indemnitee is not entitled to indemnification by
virtue of one or more of the exclusions set forth in Section 1.3
hereof.
1.5 If Indemnitee is not an officer or director of the Company, the
payment in advance of expenses incurred in defending a civil,
criminal, administrative or investigative action, suit or proceeding
shall be conditioned upon the receipt by the Company of an
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undertaking by such Indemnitee to repay such amounts advanced by the
Company upon terms and conditions, if any, as the Board of Directors
of the Company may deem appropriate.
1.6 The reference in Section 1.1. hereof to Delaware law is to Delaware
law as the same exists from time to time but, in the case of any
amendment to or change in Delaware law, only to the extent that such
amendment or change permits the Company to provide broader or
greater rights of indemnification than is permitted to the Company
prior to such amendment or change.
1.7 Any reference in this Agreement to service by Indemnitee as an
"agent" of the Company (or another corporation, partnership, joint
venture, trust or other enterprise) shall include, without
limitation, service by Indemnitee at the request of the Company, any
Subsidiary or former Subsidiary, or any Subsidiary which is
hereafter acquired or created by the Company, as a trustee,
administrator, administrative committee or investment committee
member, fiduciary, employee or agent of any employee benefit plan
maintained by the Company or any other employer (or any trust or
funding arrangement relating thereto).
2. DEFINITIONS
2.1 LOSS. The term "Loss" shall mean any amount Indemnitee is obligated
or asserted to be obligated to pay in respect of his legal
liability, whether actual or asserted, for a Wrongful Act, and shall
include damages, judgments, settlements and costs, attorneys' fees,
charges and expenses incurred in the defense of Claims.
2.2 WRONGFUL ACT. The term "Wrongful Act" shall mean any breach of duty,
neglect, error, misstatement, misleading statement, omission or
other act done or wrongfully attempted by Indemnitee so alleged by
any claimant or any other matter claimed against Indemnitee by
reason of Indemnitee being a director, officer, employee or agent.
2.3 SUBSIDIARY. The term "Subsidiary" shall mean any corporation of
which at least 50% of the stock is owned by the Company or by
another Subsidiary.
2.4 CLAIM. The term "Claim" shall mean any suit, action, proceeding,
investigation or claim threatened, whether civil, criminal,
administrative or investigative, made or instituted against or with
respect to Indemnitee and/or the property of Indemnitee either by or
in the right of the Company or by or in the right of a party other
than the Company.
3. SCOPE OF INDEMNIFICATION. Without limiting the generality of Section 1.1
hereof, this Agreement and the indemnification provided herein:
3.1 Shall apply to Indemnitee in his capacity or capacities as a
director, officer, employee or agent, or the like, of (i) the
Company, (ii) any Subsidiary or former Subsidiary, or any Subsidiary
which is hereafter acquired or created by the Company, and (iii)
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corporations, partnerships, associations and entities other than the
Company and its Subsidiaries where Indemnitee is directed or
requested to serve by the Company;
3.2 Shall be irrevocable and perpetual, and subject to Section 1.3
hereof, shall apply to any Claim arising or Loss incurred after the
date hereof, whether made or incurred prior to or after the
termination or Indemnitee's services to the Company as a director,
officer, employee or agent; and
3.3 Subject to Section 1.3 hereof, shall cover Losses arising from any
Claims made against the estate, heirs, legal representatives or
assigns of Indemnitee.
4. AGREEMENT TO BE LIBERALLY CONSTRUED. The purpose of this Agreement is to
induce Indemnitee either to serve the Company in one or more of the
capacities described in Section 3.1 hereof, or to induce Indemnitee to
continue to serve in one or more such capacities. The Company acknowledges
that, but for this Agreement and the expectation by Indemnitee that the
Company will perform each of its obligations hereunder, Indemnitee may not
consent to serve or to continue to serve the Company in such capacities.
Therefore, it is the intention of the Company and Indemnitee that this
Agreement be liberally construed so as to achieve its purpose of, subject
to Section 1.3 hereof, protecting Indemnitee from and against Losses
arising from Wrongful Acts. The Company agrees that it will not do or fail
to do any act which would or might prevent or hinder the performance by
the Company of its obligations under this Agreement.
5. AGREEMENT NOT EXCLUSIVE. The rights and benefits of Indemnitee, and the
obligations of the Company, under this Agreement shall be in addition to,
and shall not supersede or be in lieu of, the provisions (if any) relating
to the indemnification of Indemnitee by the Company in the Certificate of
Incorporation, Bylaws or resolutions of the Board of Directors of the
Company; the provisions of policies of insurance of the Company; the
provisions of policies of insurance or indemnification arrangements
provided by persons or entities other than the Company; or applicable law.
Notwithstanding anything to the contrary in this Agreement, the company
agrees to defend, indemnify and hold harmless Indemnitee to the full
extent permitted from time to time by applicable law. The Company agrees
to maintain policies of insurance of the Company covering Indemnitee's
liabilities for all claims, actions, suits and proceedings and all Losses
subject to indemnification under this Agreement, for all periods extending
until the expiration of the statute of limitations applicable to any such
claim, action, suit, proceeding or Loss. Such policies of insurance of the
Company shall provide such terms as the Company determines in good faith
to be appropriate under the circumstances and shall include, without
limitation, directors and officers liability insurance in an amount not
less than $30 million and employee benefit plan fiduciary liability
insurance in an amount not less than $10 million.
6. SEVERABILITY. Nothing in this Agreement is intended to require or shall be
construed as requiring the Company to do or fail to do any act in
violation of applicable law. In the event any provision of this Agreement
is finally determined by the courts to require the Company to do or fail
to do such an act, such provisions shall be limited or modified in its
application to the minimum extent necessary to avoid a violation of law,
and as so limited or modified such
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provision and the balance of this Agreement shall be enforceable in
accordance with their terms.
7. CHOICE OF LAW. This Agreement is made and entered into pursuant to Section
145(f) of the Delaware General Corporation Law, and this Agreement shall
be governed by, and its provisions construed in accordance with, the laws
of the State of Delaware.
8. CHOICE OF FORUM. The Company agrees that any action instituted by or on
behalf of the Company under this Agreement or to enforce or interpret any
provision of this Agreement shall be brought only in the state courts of
the State of Delaware, and in no other court; and that if any action is
instituted in any court by Indemnitee under this Agreement or to enforce
or interpret any of its terms, the Company hereby agrees, and will at such
time agree, to the exclusive jurisdiction and exclusive venue of such
court, and to personal service upon the Company by such court, for the
purpose of such actions, and will not attempt to transfer or remove such
action to another court.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Company
and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and
assigns.
10. ATTORNEYS' FEES. In the event that any action is instituted by Indemnitee
under this Agreement or to enforce or interpret any of the terms of this
Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by Indemnitee with respect
to such action, unless as a part of such action the court determines that
each of the material assertions made by Indemnitee as a basis for such
action was not made in good faith or were frivolous. In the event any
action is instituted by or in the name of the Company under this Agreement
or to enforce or interpret any of the terms of this Agreement, Indemnitee
shall be entitled to be paid all court costs and expenses, including
reasonable attorneys' fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee's counterclaims and
cross-claims made in such action), unless as a part of such action the
court determines that each of Indemnitee's material defenses to such
action were made in bad faith or were frivolous.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
AGREED TO AND ACCEPTED
SUNRISE MEDICAL, INC. BY Indemnitee
By __________________________________ __________________________________
Steven A. Jaye (NAME)
Senior vice president, general
counsel and secretary
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